Can the Right to Forcefully Defend One's Own Life -- Really be Canceled by Government?

Can the Right to Forcefully Defend One's Own Life -- Really be Canceled by Government? America’s Right of the People to Keep And Bear Arms The right to own weapons in America is under ever-increasing scrutiny and pressure, with constant demands for a blockade against such an antiquated notion. The recurrent specter of massacres which are endlessly replayed upon mainstream news stations only add to the sense that the US Constitution is an old instrument completely out of tune with the modern tenor. According to the Center for Disease Control, there were 11,078 firearm homicides last year in America. And yet when one ponders the hundreds of millions murdered arbitrarily, in just the last century, by governments refusing to accept civil rights—it gives one pause. Further, certainly guns stop a large number of crimes each year, with one writer estimating upwards of 12 million serious crimes in America. Certainly the number of stopped crimes is in the millions. And is this not better than being defenseless at home when a burglar breaks in and the police are many minutes away? Further, if we claim the Right to Life, Liberty and Happiness does not at least include the right to defend one’s own person against attack, could we possibly be correctly interpreting the Founder’s intent in the Constitution and Declaration? Did these brilliant men really expect law-abiding Americans to flush their rights down the commode and refuse to defend themselves to the point of suicidal non-resistance? The Second Amendment reads: Amendment II A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed. But what does the Second Amendment really mean? And what is its history? This essay attempts a brief outline of these questions. I. English Foundation of Right to Bear Arms One cannot understand the American Constitution’s 2nd Amendment without first outlining the British theory of citizen arms. It was an ancient practice in England for the people to be allowed weapons, according to Joyce Lee Malcolm in To Keep And Bear Arms, The Origins of an Anglo-American Right. Moreover, it was a demand by the crown that citizens be available for militias, both armed and trained. In fact, there was popular resistance to standing armies, whom did not arrive until the conclusion of the Civil Wars of the mid-17th century. Even afterward, there was a longstanding resistance to them. There was originally no “right” of British subjects to possess or carry arms. Instead, there was a duty, which existed to the king from time immemorial. Writes Malcolm, From “time out of mind” the Englishman had been obliged to add to his other civic duties the dangerous chore of law enforcement. His first responsibility was to defend himself. He was also expected to protect his family and his property against attack. It was assumed he would have the means at hand to do this; and he was held legally blameless for any harm inflicted upon his assailants. Further, Englishmen were also expected to protect their neighbors, as well. Says Malcolm, It is natural to expect a man to defend himself and his loved ones, but the Englishman was obliged to protect his neighbor as well. From at least the early Middle Ages, whenever a serious crime occurred villagers, “ready appareled,” were to raise a “hue and cry” and, under the supervision of the local constable or sheriff, pursue the culprit “from town to town, and from county to county,” on “pain of grievous fine.” The 2nd Statute of Winchester (1285) codified the demand for Englishmen to bear arms to defend themselves and others, stating: Whereas every day robbery, homicide, and arson are committed more frequently than used to be the case, and felonies escape…it is commanded that every man shall have in his house arms for keeping the peace according to the ancient assize…. In brief, all able-bodied men were held responsible to have arms and be trained in their use for defense of themselves, their family and neighbors, and the homeland. Henry VIII fined those families who had not bought their sons a bow and two arrows, and trained them how to use them, by age 7. Historian F.W. Maitland describes in The History of English Law before the Time of Edward I, how virtually all Englishmen were expected to bear arms: “The state in its exactions pays little heed to the line between free and bond, it expects all men, not merely all freemen, to have arms.” Therefore, England wanted all its men people to be armed and assembled into militias. The Statute of Winchester became the foundational document creating English law enforcement. But the first explication of the armed citizen as a bulwark against tyranny is found in James’ Harrington’s The Commonwealth of Oceana (1656). Harrington called for an armed citizenry and denoounced government by army. English historian John Pocock described his idea: “only the armed freeholder was capable of independence and virtue.” This theory was grounded in brave landowners who defended their plot of English soil, while those refusing were moral failures: “citizens who do not defend themselves abandon a vital part of their power and virtue.” Harrington’s model was what Pocock describes as a hardy soul, autonomous in his own defense, who could be described as an “agrarian warrior.” Such a person would undoubtedly be welcomed by our own Founders, who likewise tended to be independent men of the soil, happy to mind their own business until liberty was at stake. II. British Militias The militia clause in the 2nd Amendment is derived from the English habit of using private citizens to protect the land, as opposed to standing armies. The English employed militias for centuries as an alternative to armies, which they viewed as un-virtuous and dangerous. England was better able to avoid the need for permanent armies since it was an island nation, not as at risk from its borders. Mercenaries were detested. In fact, in Magna Carta, King John had been required to remove them: 51. As soon as peace is restored, we will banish from the kingdom all foreign born knights, crossbowmen, serjeants, and mercenary soldiers who have come with horses and arms to the kingdom’s hurt. Militias were funded by a tax levied upon anyone with an income, even the clergy and the poor. A lower class person or family might be expected to locate a modest armament or supplies, whereas someone of means was expected to produce a more formidable offering. At any time in the 17th century, there were at least 90,000 militia members between England, Scotland and Wales. The idea of a trained-to-arms populace was championed by various thinkers, such as Sir Walter Raleigh, who pointed out that the goal of a tyrant was “...to unarm his people of weapons, money and all means whereby they resist his power.” Likewise, Sir Thomas More, in Utopia, urged the training of all men and women to defend their homeland and friends. The militia was ordered to train on a regular basis, employing “butts,” or targets, for bow and arrow, and gun practice. The militia was a defensive force, not available for use outside the homeland. Overall, militias were more than sufficient for defense of the realm for over a thousand years. III. American Right to Bear Arms: Second Amendment Any study of the Second Amendment demands a preliminary question: If the Declaration of Independence (the introduction to our Constitution) declares “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”—How can guns used merely for self-protection of the owner’s life be unconstitutional? Further, how could the same Constitution which defends life, and forcefully gives rights for arms, not allow personal use of guns for self-defense? Before venturing into defining the Second Amendment, we must first accept an obvious, albeit neglected point—that only by studying the British legal history that gave rise to America’s Constitution can we hope to understand its points. This position was already affirmed in the Supreme Court case of EX PARTE GROSSMAN, 267 U.S. 87 (1925): The language of the Constitution cannot be interpreted safely except by reference to the common law and to [267 U.S. 87, 109] British institutions as they were when the instrument was framed and adopted. The statesmen and lawyers of the Convention who submitted it to the ratification of the Convention of the Thirteen States, were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary. They were familiar with other forms of government, recent and ancient, and indicated in their discussions earnest study and consideration of many of them, but when they came to put their conclusions into the form of fundamental law in a compact draft, they expressed them in terms of the common law, confident that they could be shortly and easily understood. The American history of guns and citizens predates the writing of the Declaration, Constitution, and Bill of Rights. According to Leonard Levy in Origins of the Bill of Rights, during the tense days of the American Revolution, and conversations regarding drafting the Constitution, Thomas Jefferson urged principal author James Madison to include a Bill of Rights. Madison resisted because he and many others believed rights theory was so omnipresent in America as to need no explanation, or defense. Madison relented, then glossed the States’ bills of rights, gleaning the cream from the crop, while adding a few novel and ingenious twists. The Second Amendment was an innovation upon the English duty to bear arms. Madison gives the colonists a Right to bear arms, which cannot be removed by government fiat. One argument over the meaning of the Second Amendment involves whether arms can only be used by militia members or in a militia. This argument is rejected by both Levy and Malcolm. To prove that early Americans even even demanded gun ownership, Malcolm shows how arms were a desired aspect of life in the earliest States. The State’s Constitutions, Bills of Rights, and also the Articles of Confederation—the precedent before the Constitution, prove her point. For example, in the law of the 1623 Plymouth Colony, was a demand all persons be armed: “In regard of our dispersion so far asunder and the inconveniences that may befall, that every inhabitant provide himself a sufficient musket or other or other serviceable piece for war.” Again, a 1639 Newport, Virginia law stated, “Noe man shall go two miles from the Towne unarmed, eyther with Gunn or Sword; and that none shall come to any public Meeting without his weapon.” These examples could be expanded liberally. It is clear that the American colonial impulse was for having more armed residents, not less. Further, restrictions upon those who could, or could not, own a weapon as regards class, income or gender, were not carried across the Atlantic from England to the States. The anti-tax revolts stirred up a general distrust of English government, and especially over King George’s high-handed manner. This caused an upsurge in gun ownership as Americans began to fear they may be forced to defend their land, property and lives. The standing armies left behind after the French And Indian War infuriated Americans who saw such a maneuver as a sign of subjugation. In fact, the tax proceeds from the hated Stamp Act were used to provision this force which caused fear of government by army. The intellectuals who most influenced the colonists also supported gun rights. For example, the most quoted British writer in the States, William Blackstone, was cited by Madison: Instances of the licentious and outrageous behavior of the military conservators still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defence, was a measure as prudent as it was legal… It is a natural right which the people have reserved to themselves, confirmed by the [English] Bill of Rights to keep arms for their own defence; and as Mr. Blackstone observes: it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression. Early state constitutions reveal that the colonists and Founders well understood the need for arms to defend not just the state, but also individuals, as the Pennsylvania constitution states: “Section 21. Right to Bear Arms—The right of the citizens to bear arms in defense of themselves and the State shall not be questioned.” While John Locke and Thomas Jefferson are both well-known as defending the right to revolt against tyranny, the New Hampshire constitution goes farther, stating that to not resist tyranny is the hallmark of the slave: [Art.] 10. [Right of Revolution.] Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.—June 2, 1784 Conclusion In an age of increasing lawlessness, in both society and government, it is prudent for Americans to study and remember our right—and keep them neatly tucked into our belts, for ready access in times of emergency. Here are some quotes from the Founders on the right to be armed: “A free people ought to be armed.”—George Washington “A free people ought not only to be armed and disciplined, but they should have sufficient arms and ammunition to maintain a status of independence from any who might attempt to abuse them, which would include their own government.”—George Washington “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”—Benjamin Franklin “No free man shall ever be debarred the use of arms.”—Thomas Jefferson “I prefer dangerous freedom over peaceful slavery.”—Thomas Jefferson “The laws that forbid the carrying of arms are laws of such a nature. They disarm only those who are neither inclined nor determined to commit crimes…. Such laws make things worse for the assaulted and better for the assailants; they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man.”—Thomas Jefferson (quoting 18th century criminologist Cesare Beccaria) “A strong body makes the mind strong. As to the species of exercises, I advise the gun. While this gives moderate exercise to the body, it gives boldness, enterprise and independence to the mind. Games played with the ball, and others of that nature, are too violent for the body and stamp no character on the mind. Let your gun therefore be your constant companion of your walks.” - Thomas Jefferson “The Constitution of most of our states (and of the United States) assert that all power is inherent in the people; that they may exercise it by themselves; that it is their right and duty to be at all times armed.”—Thomas Jefferson “On every occasion [of Constitutional interpretation] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying [to force] what meaning may be squeezed out of the text, or invented against it, [instead let us] conform to the probable one in which it was passed.”—Thomas Jefferson “I enclose you a list of the killed, wounded, and captives of the enemy from the commencement of hostilities at Lexington in April, 1775, until November, 1777, since which there has been no event of any consequence ... I think that upon the whole it has been about one half the number lost by them, in some instances more, but in others less. This difference is ascribed to our superiority in taking aim when we fire; every soldier in our army having been intimate with his gun from his infancy.”—Thomas Jefferson in a letter to Giovanni Fabbroni, June 8, 1778 “Arms in the hands of citizens may be used at individual discretion in private self defense.”—John Adams “To disarm the people is the most effectual way to enslave them.”—George Mason “I ask sir, what is the militia? It is the whole people except for a few politicians.”—George Mason (father of the Bill of Rights and The Virginia Declaration of Rights) “Before a standing army can rule, the people must be disarmed, as they are in almost every country in Europe.”—Noah Webster “The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops.”—Noah Webster “A government resting on the minority is an aristocracy, not a Republic, and could not be safe with a numerical and physical force against it, without a standing army, an enslaved press and a disarmed populace.”—James Madison “Americans have the right and advantage of being armed, unlike the people of other countries, whose leaders are afraid to trust them with arms.”—James Madison “The right of the people to keep and bear arms shall not be infringed. A well regulated militia, composed of the body of the people, trained to arms, is the best and most natural defense of a free country.”—James Madison “The ultimate authority resides in the people alone.”—James Madison “Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.”—William Pitt “To preserve liberty, it is essential that the whole body of the people always possess arms, and be taught alike, especially when young, how to use them.”—Richard Henry Lee “A militia, when properly formed, are in fact the people themselves ... and include all men capable of bearing arms.”—Richard Henry Lee “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are ruined…. The great object is that every man be armed. Everyone who is able might have a gun.”—Patrick Henry “This may be considered as the true palladium of liberty…. The right of self defense is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction.”—St. George Tucker “... arms ... discourage and keep the invader and plunderer in awe, and preserve order in the world as well as property…. Horrid mischief would ensue were (the law-abiding) deprived the use of them.”—Thomas Paine “The Constitution shall never be construed to prevent the people of the United States who are peaceable citizens from keeping their own arms.”—Samuel Adams “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”—Joseph Story “What, Sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty .... Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.”—Rep. Elbridge Gerry of Massachusetts ” ... for it is a truth, which the experience of all ages has attested, that the people are commonly most in danger when the means of insuring their rights are in the possession of those of whom they entertain the least suspicion.”—Alexander Hamilton